Citation NR: 9712893
Decision Date: 04/16/97 Archive Date: 04/29/97
DOCKET NO. 95-27 904 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Entitlement to an evaluation in excess of 10 percent for a
left mastectomy scar.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Jeffrey J. Schueler, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1942 to
January 1946.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a June 1995 rating decision of the
Department of Veterans Affairs (VA) New Orleans, Louisiana,
Regional Office (RO) that denied the veteran’s claim for an
evaluation in excess of 10 percent for a left mastectomy
scar.
REMAND
The veteran contends that his service-connected left
mastectomy scar has undergone an increase in severity so as
to warrant an increased evaluation. Initially, the Board
notes that the most recent VA examination associated with the
veteran’s left mastectomy scar disability was conducted in
May 1992. At that time, it was noted that Muscle Groups II
and XXI had been penetrated. Since the time of that
VA examination, numerous VA and private treatment records
have been received into the record discussing elements of
pain and tenderness associated with the left mastectomy scar.
However, none of this evidence refers to the effect of the
surgery or the resulting scar on the intrinsic muscles of the
shoulder girdle (Muscle Group II) or the muscles of
respiration (Muscle Group XXI). See 38 C.F.R. §§ 4.72, 4.73,
Diagnostic Codes 5302 and 5321 (muscle groups noted
penetrated in May 1992 VA examination report). Moreover, the
veteran testified at his personal hearing in January 1996
that his scar caused a pulling sensation in his chest when he
did heavy work and that he sometimes had problems lifting his
left arm above shoulder level. In light of the veteran’s
testimony regarding difficulty of movement and the May 1992
VA examination report discussing muscle group penetration,
the claim will be remanded to the RO for further development
as specified below.
To ensure that VA has met its duty to assist the appellant in
developing the facts pertinent to the claim, the case is
REMANDED to the RO for the following development:
1. The RO should request that the
veteran supply the names and addresses of
any individuals or treatment facilities
that have treated him for his left
mastectomy scar disability since April
1996, and the dates of such treatment.
After securing any necessary releases,
the RO should obtain copies of the
clinical records of such treatment and
associate them with the claims folder.
2. The veteran should be afforded a VA
orthopedic examination to determine the
nature and severity of his service-
connected left mastectomy scar
disability. The claims folder must be
made available to the examiner for review
before the examination. All indicated
tests and studies should be conducted,
including active and passive range of
motion measurements of the shoulders, and
x-ray studies of the chest and shoulders.
Any objective evidence of pain should be
reported, including not only painful
motion of the shoulder, but whether the
scar itself is tender and painful. The
examiner should be specifically requested
to comment on any residuals of the
disability affecting the intrinsic
muscles of the shoulder girdle (Muscle
Group II) and the muscles of respiration
(Muscle Group XXI), the severity of any
such residuals, and any other residuals
of the disability. All examination
findings should be prepared into
typewritten reports and associated with
the claims file.
3. After the development requested above
has been completed to the extent
possible, the RO should again review the
record. If any benefit sought on appeal,
for which a notice of disagreement has
been filed, remains denied, the appellant
and his representative should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURAL MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
MICHAEL A. PAPPAS
Acting Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
- 2 -